FCC chairman says he won’t let ISPs snuff out the next Google or Amazon

"I won’t hesitate" to declare ISPs common carriers, Wheeler writes.

President Obama announces the nomination of Rep. Melvin Watt, left, as Director of the Federal Housing Finance Agency (FHFA) and Tom Wheeler, right, as Chairman of the Federal Communications Commission (FCC), on May 1, 2013.

FCC Chairman Tom Wheeler has thus far declined to reclassify broadband as a telecommunications service, which would open Internet service providers up to common carrier regulations under Title II of the Communications Act. Today, he wrote that he won't hesitate to do so, although this still seems to be an unlikely possibility.

Further Reading

Pay-for-play is fine for Web users? That's not what the FCC said in 2010.

When proposing network neutrality rules that prevent ISPs from blocking websites while allowing them to charge Web services for a faster path to consumers, Wheeler set aside calls to declare ISPs common carriers. His proposal came after a federal appeals court overturned the FCC's original anti-discrimination and anti-blocking rules, ruling that the FCC imposed common carrier obligations on providers that it had not classified as common carriers.

Wheeler defended his proposal today while stressing that it's not the only option.

"I do not believe we should leave the market unprotected for multiple more years while lawyers for the biggest corporate players tie the FCC’s protections up in court. Notwithstanding this, all regulatory options remain on the table," Wheeler wrote in a blog post. "If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won’t hesitate to use Title II. However, unlike with Title II, we can use the court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay."

"If we get to a situation where arrival of the 'next Google' or the 'next Amazon' is being delayed or deterred, we will act as necessary using the full panoply of our authority," he also wrote. "Just because I believe strongly that following the court’s roadmap will enable us to have rules protecting an Open Internet more quickly, does not mean I will hesitate to use Title II if warranted."

Wheeler said criticism of his proposal has been unfair:

There has been a great deal of discussion about how our proposal to follow the court’s roadmap will result in a so-called “fast lane” and Internet “haves” and “have-nots.” This misses the point. The proposed rule is built to ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the content, services, and applications they demand, as well as an Internet that offers innovators and edge providers the ability to offer new products and services.

Wheeler said he will make sure any agreements between Web services and ISPs are "commercially reasonable." He laid out what he thinks is not commercially reasonable in today's post:

Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down.

Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.

Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.

Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online, such action should be shut down.

Wheeler pointed out that the court allowed rules that force ISPs to disclose information about their business practices. This will help "'rat out' bad practices by ISPs," he wrote.

Wheeler also addressed peering agreements, like the ones in which Netflix has agreed to pay Verizon and Comcast for direct connections to their networks. Peering is "outside the scope" of his proposal, but "we will seek comment on this question in order to hear from those who may disagree with this suggested treatment of peering/traffic exchange."